The Full Board, at its meeting held on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 12, 2011.
The issues presented for Mandatory Full Board Review are:
In a decision filed on September 7, 2010, the Workers' Compensation Law Judge (WCLJ) found the claimant is not attached to the labor market and found no compensable lost time from October 1, 2009, to September 2, 2010.
The majority of the Board Panel modified the WCLJ's September 7, 2010, decision to find the claimant reattached to the labor market beginning September 1, 2010, and directed awards from September 1, 2010, forward at a marked partial disability rate of $392.62 per week.
The dissenting Board Panel member would affirm the WCLJ's finding that the claimant is not attached to the labor market because the claimant has not performed a sufficient search for employment.
In its application for Mandatory Full Board Review, the carrier first argues the Board Panel majority erred in finding the claimant is attached to the labor market. Alternatively, the carrier asserts that the Board Panel majority erred in directing awards from September 1, 2010, and continuing at a marked partial disability rate because the medical evidence does not support this finding.
In rebuttal, the claimant requested the Board Panel majority's decision be affirmed because the claimant searched for work within restrictions and for work for which he is qualified to perform.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for a back injury sustained when the claimant, a forger, lifted a 65 pound piece of equipment on October 1, 2009.
The claimant began seeing his physician, Dr. Khan, on October 2, 2009. Dr. Khan filed C-4.2 forms based upon each examination of the claimant. On October 16, 2009, Dr. Khan indicated the claimant is 20% disabled and that the claimant could work light duty. On October 23, 2009, Dr. Khan found the claimant's disability increased to 50%. On January 5, 2010, Dr. Khan stated the claimant is out of work, the claimant has a 75% disability and the claimant should avoid lifting, bending and twisting. On April 14, 2010, Dr. Khan continued to find the claimant has a 75% disability and listed the claimant's restrictions of no prolonged heavy lifting, no lifting over fifteen pounds, and should limit his bending and twisting activities. Dr. Khan further noted that the claimant's lumbar MRI revealed a L4-5 central disc herniation.
On May 13, 2010, the claimant filed a RFA-1 stating he has not worked since December 21, 2009, due to his causally related back injury and is not receiving compensation. Attached to the RFA-1 was December 21, 2009, work ability report indicating the claimant is unable to work pending further re-evaluation.
On June 9, 2010, the WCLJ formally established the case to the low back, set the claimant's average weekly wage as $785.24, held awards after October 1, 2009, in abeyance, and continued the case to August 4, 2010, for testimony of the claimant and one employer witness on the issue of causally related lost time.
At the August 4, 2010, hearing, prior to taking the claimant's testimony, the parties agreed that the claimant stopped work due to his causally related disability and is collecting unemployment. Based upon this, the parties agreed that the only outstanding issue was labor market attachment. The claimant testified that subsequent to his work accident, he worked light duty until late December 2009 until he was taken out of work. His doctor placed him on medical restrictions of limited bending and lifting to ten to fifteen pounds. His employer laid off many employees on January 4, 2010, including himself. He has looked for other employment since January 4, 2010. He keeps a job search list, but did not bring this list to the hearing. He submitted one application for janitorial work in March 2010. He registered with One-Stop, which helped him prepare a resume. He has been to One-Stop twice and intends to follow up with One-Stop. He is forty years old. He did not graduate from high school, only finishing the 11th grade. He does not possess any trade certificates.
Following the claimant's testimony, the WCLJ noted that this hearing was not originally set on the issue of labor market attachment, and as such, continued the case to September 1, 2010, to provide the claimant an opportunity to produce any evidence that he is actively participating in One-Stop and documentation regarding his job search.
Dr. Khan examined the claimant again on August 4, 2010, and continued to find the claimant has a 75% disability with restrictions of no heavy lifting, no lifting over fifteen pounds, and limited bending and twisting.
On September 1, 2010, the claimant testified that he worked for his employer for about two and one-half years prior to his injury and his job duties included housekeeping, mopping, sweeping, vacuuming, and lifting and carrying items up to 150 to 200 pounds. His doctor took him out of work on either December 21 or December 23, 2009, and has since restricted his work to no lifting above fifteen pounds with limited bending or twisting. He has never performed light duty or sedentary work. He has searched for work since he was taken out of work except for a brief period of incarceration of twenty days in June 2010. He has been trying to find light duty employment such as working a cash register. When he went to One-Stop, they advised him to search for work on a computer, but he did not know how to use a computer. Since January 2010, he has been to One-Stop twice, with the last visit occurring on August 4, 2010. He has not contacted his former employer to see if they have light duty work available. He has searched for work at Dunkin Donuts, Dippin Donuts and two pizzerias, but was told that jobs were not going to be available until the school year begins. He produced a list of four places he went to in search of employment from August 10, 2010, to August 26, 2010. He has not submitted any applications through the computer. He has not been to VESID. He has a driver's permit, but no car, and as such he has to take public transportation.
The claimant's job search list included four potential employers the claimant personally visited from August 10, 2010, to August 26, 2010. The claimant named the person whom he spoke to on August 10 and August 12, 2010, but did not identify whom he spoke to on August 17 or August 26, 2010. The claimant only listed the address of one employer and did not list the phone number of any of the four employers. The list included the response he received as to why he was not hired at any of these jobs.
Following the claimant's testimony, the WCLJ found the claimant is not attached to the labor market and found no compensable lost time from October 1, 2009, to September 2, 2010. These findings were memorialized by decision filed September 7, 2010. The claimant requested administrative review of that decision and claimant's attorney filed a fee application requesting an attorney's fee in the amount of $2,000.00.
Following the claimant's September 1, 2010, testimony, the claimant saw Dr. Gould on September 2, 2010, November 23, 2010, April 4, 2011, and July 6, 2011. For the examinations of September 2, 2010, and November 23, 2010, Dr. Gould found the claimant 75% disabled; but for the examinations of April 4, 2011, and July 6, 2011, Dr. Gould indicated the claimant is only 50% disabled.
On October 21, 2010, the claimant submitted documentation from the New York State Department of Labor (One-Stop) indicating he visited One-Stop on September 28, 2010, where he went through orientation, was provided assistance to prepare a resume and how to search for work. This document further noted the claimant was referred to VESID and that the claimant has been registered with the One-Stop since December 2005.
Labor Market Attachment
The record is clear that the claimant, by not producing a documented job search and only going to One-Stop once prior to his August 4, 2010, testimony, was not attached to the labor market prior to August 4, 2010. Thus, the claimant was obligated to reattach to the labor market before there could be a finding of subsequent causally related lost earnings (see Matter of Bacci v Staten Is. Univ. Hosp., 32 AD3d 582 ).
Initially, the carrier correctly cites that the lack of a driver's license is not a pre-requisite to finding the claimant is attached to the labor market (Cortland County Highway Dep't., 2009 NY Wrk Comp. 90704769). Additionally, the fact the claimant only performed manual labor work does not purport that he cannot work a sedentary position.
Attachment to the labor market can be demonstrated by credible documentary evidence showing that claimant is actively seeking work within the restrictions through an independent job search that is timely, diligent, and persistent; or is actively participating in a job-location service such as (1) New York State's Department of Labor's re-employment services, (2) One-Stop Career Centers, or (3) a job service commonly utilized to secure work within a specific industry; or is actively participating in vocational rehabilitation through VESID or other Board-approved rehabilitation program; or is actively participating in a job-retraining program; or is attending an accredited educational institution full time to pursue employment within the work restrictions (Matter of American Axle, 2010 NY Wrk Comp 80303659). In essence, American Axle states that to become or remain attached to the labor market, a claimant must either conduct an independent job search or participate in a job-location service.
In order to find the claimant is attached to the labor market by participating with One-Stop, documentary evidence that a claimant is actively participating in the services provided by a One Stop office in order to return to work within his or her restrictions is evidence of an attachment to the labor market. Active participation means (1) calling for an appointment; (2) attending an orientation session; (3) meeting with a One-Stop counselor to develop a resume; (4) registering a resume in the One-Stop system; (5) following up to determine whether there were any job matches; and (6) following up on all job referrals and matches (id.).
In this matter, the claimant conceded he only went to One-Stop on two occasions between December 2009 and September 1, 2010. Prior to the completion of the claimant's testimony, the claimant failed to produce evidence that he went to One-Stop despite the WCLJ's direction to do so at the August 4, 2010, hearing, that he attended an orientation session, or had applied for employment while at One-Stop. In fact, the claimant testified he did not apply for work while at One-Stop on either occasion. Although the claimant produced documentation that he went to One-Stop on September 28, 2010, four weeks after the WCLJ's finding that he is not attached to the labor market, such evidence is not sufficient to find the claimant reattached to the labor market on or prior to September 1, 2010.
Independent Job Search
While an independent job search is encouraged, absent documentation verifying a timely, diligent, and persistent outreach to potential employers for work within the medical restrictions, there is no credible evidence upon which to find an attachment to the labor market. At a minimum, if the independent job search is in person, documentary evidence should provide the day, month, and year of the contact; the name and address of the employer; the name and telephone number of the person with whom employment was discussed; the type of job sought; and the response of the potential employer. If the contact was written, copies of the resume submitted if any; the inquiry letter or e-mail communication; or the application completed is necessary along with the day, month, and year submitted, the nature of employment sought, name and address of the employer and the response of the potential employer (id.; Matter of Manpower, 2010 NY Wrk Comp 50604798).
On September 1, 2010, the claimant produced documentation of his independent job search. This list consisted of four potential employers the claimant went to in search of employment. The first employer the claimant went to was Dunkin Donuts on August 10, 2010. The claimant did not provide an address or phone number of the employer. The claimant spoke to the supervisor, who he named, and was told to wait until school is back in session. The claimant next applied for work at Dippin Donuts on August 12, 2010. The claimant did not provide an address or phone number of the employer. The claimant spoke to a supervisor, who he named, and was told they were not hiring now. The claimant, in testimony, stated he had to wait until school was back in session before he could reapply. The claimant next went to Tony's Pizzeria on August 17, 2010. The claimant did not provide an address or phone number for this employer. The claimant indicated he walked in and was told he doesn't have experience. The claimant did not indicate whom he spoke to. The claimant last applied for work on August 26, 2010, at Little Caesars. The claimant identified the road where the employer was located. The claimant was told no work was available at that time. The claimant did not indicate whom he spoke to. The claimant testified that like the two donut shops, he was told to wait until school was back in session before he could reapply for work.
The claimant's testimony and documentary evidence are sufficient to find he reattached to the labor market as of August 10, 2010. The claimant identified the names of each employer, the date he applied for employment, the responses for each job applied for, and the names of two people he spoke to. The fact that the claimant did not identify the specific address or phone number of each potential employer is not an impediment to find the claimant is unattached to the labor market because the claimant did not call the potential employer; but rather, personally walked into each establishment.
Based upon the foregoing, Full Board finds that the claimant reattached to the labor market as of August 10, 2010, the first date he provided documentation of a job search.
In order to receive awards for periods prior to December 1, 2010, a temporarily disabled claimant must provide continuing medical reports of a disability every 45 days (see Matter of Rothe v United Med. Assoc., 2 AD3d 1264, 1265 ). However, subsequent to December 1, 2010, the Board's Medical Guidelines require that a claimant must produce medical evidence every 90 days to receive continuing indemnity benefits. (WCL 12 NYCRR 325-1.3)
In this matter, the claimant produced medical reports on August 4, 2010, September 2, 2010, and November 23, 2010, indicating he is 75% disabled and medical report from examinations of April 4, 2010, and July 6, 2011, indicating he is 50% disabled.
Therefore, pursuant to Rothe, the current Board Medical Guidelines, and medical reports, awards are directed as follows:
08/10/10 - 10/17/10 at a marked partial disability rate of $392.62 per week
10/17/10 - 11/23/10 - no medical evidence
11/23/10 - 02/23/11 at a marked partial disability rate of $392.62 per week
02/23/11 - 04/10/11 - no medical evidence
04/10/11 - 08/10/11 at a moderate partial disability rate of $261.75 per week
It is for the Board to determine whether an attorney has contributed anything to the case for which he should be paid (Matter of McDowell v La Voy, 83 AD2d 680 ). The relevant factors in determining the value of the legal services rendered are the nature and extent of the services, the actual time spent, the necessity therefore, the nature of the issues involved, the professional standing of the counsel and the results achieved (Matter of Jordan v Freeman, 40 AD2d 656 ).
The claimant's attorney requested a $2,000 fee in its application for administrative review, in the event that awards were made. Within this application, the claimant's attorney listed several descriptions of services rendered to the claimant, including correspondence with the claimant, carrier, medical providers, and the carrier, and attendance at hearings. However, the attorney failed to indicate the time spent on this case.
12 NYCRR 300.17(d)(2) provides in pertinent part:
All fees awarded at a hearing are to be made in the presence of the claimant, except that the Workers' Compensation Law Judge may, in his or her discretion, waive this requirement if the amount of the fee requested is not more than $450, provided that the attorney or licensed representative makes a statement on the record as to the services rendered and the time spent for the performance of such services.
The claimant's attorney failed to list time spent for services, and therefore the application did not conform to 12 NYCRR 300.17. Therefore, the claimant's attorney is directed to submit a completed fee application that fully complies with 12 NYCRR 300.17. Pending that application, the carrier should is directed to withhold $1,500 for a potential fee, and
ACCORDINGLY, the WCLJ decision filed on September 7, 2010, is MODIFIED to find the claimant remained attached to the labor market after August 10, 2010, and, based upon the evidence subsequently filed, awards are directed as indicated above. In addition, the carrier is to withhold $1,500.00 for a potential claimant's attorney's fee, and the claimant's attorney directed to submit a completed fee application that fully complies with 12 NYCRR 300.17 within 30 days. No further action is planned by the Board at this time.